Graham on behalf of the Ngadju People (Ngadju Part B) v State of Western Australia

Summary of background matters 6 This matter has a long history. That history is set out in part in an affidavit dated 3 July 2017 by Mr Mark Rumler, who is a solicitor for the applicant. 7 The current proceeding is a combination of two earlier native title claims made on behalf of the Ngadju People and which have been before the Court since 1995. A very small portion of the Ngadju application area, approximately 4%, was overlapped by two other native title claim claims, WAD 6216 of 1998 and WAD 6243 of 1998. On 9 December 2011, the Court made orders under s 67 of the Act that that part of the Ngadju application area that did not overlap geographically with WAD 6216 of 1998 or with WAD 6243 of 1998 would be referred to as the "Ngadju Trial Area proceeding" and that the hearing of the Ngadju Trial Area proceeding would commence in Perth on 7 May 2012. This ultimately resulted in the making of the Ngadju Part A Determination in April 2016, but only after protracted litigation at the level of the Federal Court, the Full Court of the Federal Court and the High Court of Australia. 8 In December 2004, the Court (Marshall J) heard preservation evidence on country. The following Aboriginal witnesses gave evidence: (a) Ollan Dimer (now deceased); (b) Dorothy Dimer (now deceased); (c) Johnny Graham; (d) Jack Schultz (now deceased); and (e) Sonny Graham. 9 In June 2009, the Court heard further preservation and other evidence on country. The following Aboriginal witnesses gave evidence: (a) John Walter (Danny) Graham; (b) Stephen Reginald Rule; (c) Aaron James Rule; (d) Phyllis Wicker ; (e) Valma Joy Schultz; and (f) Adrian John Schultz. 10 On 30 July 2009, the applicant filed and served its expert anthropologist's report entitled Further Anthropologist's Report prepared by Dr Kingsley Palmer. That report was reviewed and responded to by the State's expert anthropologist, Professor Basil Sansom. During this time, the proceeding remained in mediation until 24 March 2011 at which time the mediation ceased without resolution. 11 In May 2012 a final tranche of evidence was heard in the Ngadju Trial Area proceeding. The following Aboriginal witnesses gave evidence in that tranche: (a) Leslie Schultz; (b) Rule Johnson Wicker; (c) James Schultz; and (d) Justin Scott Graham. 12 During that tranche the Court also heard evidence from the following expert witnesses: (a) Dr Debra Ann Fletcher (historian); (b) Professor Sansom and Dr Palmer (anthropologists who gave concurrent evidence); and (c) Professor Veth (archaeologist). 13 On 27 August 2012, Marshall J gave judgment in respect of three interlocutory applications brought by individuals who sought to be joined as respondents (see Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1003). 14 The Court amended its earlier programming orders on 24 September 2012 and made an order under Order 30.01 of the Federal Court Rules 2011 that the following question be decided separately and in advance of any other question in the proceeding: But for any question of extinguishment of native title by acts carried out pursuant to the authority of the legislature to which Divisions 2, 2A, 2B or 3 of Part 2 of the Native Title Act 1993 (Cth) or the Titles Validation and Native Title (Effect of Past Acts) Act 1995 (WA) applies, and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth): (i) does native title exist in relation to land and waters in the area of the Ngadju Trial Area proceeding ; (ii) if the answer to (i) above is the in affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title; and (iii) what is the extent of the native title rights and interests in relation to the area? 15 The Court's decision on the separate question was delivered on 21 December 2012 (see Graham on behalf of Ngadju People v State of Western Australia [2012] FCA 1455 (Graham No 2)). An appeal against that judgment, brought by the State of Western Australia, was allowed in part on 27 November 2013 (see State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143 (Graham Full Court No 1)). The Full Court dismissed 3 of the 4 grounds of appeal advanced by the State, but allowed the remaining ground, resulting in the removal of one of the apical ancestors from the description of the native title holders. 16 Programming orders were also made regarding extinguishment issues in relation to the Ngadju Trial Area proceeding. Those issues were the subject of two judgments dated 21 May 2014 and 3 July 2014 respectively (see Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 and Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 700) with additional orders regarding the content of the determination being made on 12 November 2014. A determination of native title was made by Marshall J in relation to the Ngadju Trial Area on 21 November 2014 at Norseman: Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 (Graham No 5). The Full Court heard various appeals and cross appeals from those three decisions. 17 On 20 April 2016, the Ngadju Trial Area proceeding was finally determined by order of the Full Court, which varied the determination made on 21 November 2014 in Graham, and gave effect to the Full Court's reasons for judgment published on 29 March 2016 in State of Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47 (Graham Full Court No 2), which gave rise to the Part A Determination. The variations made by the Full Court to the earlier determination related to the validity of certain mining tenements. The description of the native title holders and of the native title rights and interests were unchanged. 18 An application for special leave to appeal to the High Court from Graham Full Court No 2 was refused in October 2016.

Authorisation issues 24 An issue arises because seven of the ten persons named as the applicant have died. The question is whether the surviving three persons remain authorised to deal with all matters arising in relation to the application pursuant to the Act without the need for further authorisation. In a joint submission filed by the applicant and the State of Western Australia, the Court is asked to make an order under s 84D(4) of the Act to address this issue. 25 Section 61(1) of the Act permits the making of a native title determination application by those persons who are authorised by all the persons (the native title claim group) who, according to their traditional laws and customs hold the common or group rights and interests comprising the particular native title claimed, provided the persons are also included in the native title claim group. The carriage of a native title determination is vested in the persons who jointly comprise the applicant. Section 62A relevantly provides that, in the case of a claimant application, "the applicant may deal with all matters arising under this Act in relation to the application". This includes consenting to a determination of native title under s 87 of the Act. 26 Unchallenged evidence was given by Mr David Lanagan as to the searches he had conducted in an attempt to find written evidence as to the terms of the authorisation of the applicant and, in particular, to ascertain whether the authority of those persons who survive was intended to continue in the event that one or more people who originally comprised the applicant were deceased. Mr Lanagan is the Manager - Land, Anthropology/Heritage and Future Acts of the Goldfields Land and Sea Council (GLSC). Mr Lanagan described how, despite examining all documents kept on the GLSC's file in relation to this proceeding, he was only able to find a copy of the original application dated 30 June 1995, lodged by the Aboriginal Legal Service with the National Native Title Tribunal. He could find no evidence of authorisation. Mr Lanagan noted that, when the original application was filed in 1995, there was no requirement for an applicant for a determination of native title to obtain authorisation from the native title claim group before making application. He also noted that the native title application was amended following amendments made in 1998 to the Act in order to satisfy the new registration test and that those amendments resulted in it being in its current form. Those amendments introduced s 251B. Schedule R in the amended Form 1 refers to a meeting of the claim group which authorised the applicant to make the application and to deal with matters arising in relation to it. Despite his efforts, Mr Lanagan was unable to find the minutes of the claim group meeting referred to in Schedule R. 27 I accept Mr Lanagan's evidence. 28 As noted above, the Court is asked to address this matter by making an order under s 84D(4). That provision is in the following terms: … (4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice: (a) hear and determine the application, despite the defect in authorisation; or (b) make such other orders as the court considers appropriate. … 29 As Gilmour J observed in Barunga v State of Western Australia [2011] FCA 518 (Barunga) at [14] it is an unfortunate situation for an applicant if the terms of the authorisation cannot be located. That is because the terms of a written authorisation given to the applicant in a native title determination proceeding is "of particular significance in the conduct of the proceeding" in circumstances where the applicant alone is empowered to deal with all matters arising in relation to the application. As this proceeding highlights, considerable time may be required to resolve an application for native title determination. It is important to retain reliable files, including in respect of the terms of authorisation. 30 Although there is no direct evidence of the terms of the authorisation given to the applicant, both the applicant and the State of Western Australia jointly submit that it is appropriate for the Court to make an order under s 84D(4). They point out that such an order was made by Gilmour J in Barunga after his Honour considered that the case was similar to that before Finn J in Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; 204 FCR 1 (Akiba), where such an order was also made. In Akiba only two of the originally named four persons making up the applicant were still alive. Justice Finn stated at [930] and [931]: 930 I am satisfied that while Mr Mye, Mr Akiba and the others were selected as representatives of their respective cluster group, the purpose of their selection was to prosecute the claim of all of the holders of native title in the claim area. It has been prosecuted to all but finality and successfully so. Justice would be denied if this matter did not proceed to a determination. 931 I am satisfied that considerable delay, cost and confusion which would bring no credit upon the legal system, would ensue if I were to require strict compliance at this late stage with the authorisation requirement of s 61 of the Act. Indeed I am not at all sanguine that strict compliance could be secured in any event for logistical reasons. 31 In their joint submission, the applicant and the State contend that, in the event that the Court considers that there is or may be a defect in the authorisation of the applicant, an order should be made under s 84D(4), it being in the interests of justice and appropriate to do so because: (a) the absence of the Part B Determination Area from the Part A Determination Area arose as a result of the existence of overlapping native title claims, and not any decision of the native title claim group that related to their assertion to possess (to the exclusion of all others) native title rights and interests in those two areas; (b) there are no longer any overlapping claims affecting the Part B Determination Area and no other party asserts to hold native title rights and interests in that area; (c) there is no reasonable basis to distinguish between the Part B Determination Area and the Part A Determination Area as it concerns the Full Court's findings that the Ngadju People, who are the descendants of relevant ancestors, possess native title rights and interests; (d) the Part B Determination is entirely consistent with the findings of the Full Court in Graham Full Court No 1 and Graham Full Court No 2; and (e) it is apparent that these proceedings have a lengthy procedural history whereby all issues in dispute between the parties have been exhaustively determined, including on appeal, such that the parties are in effect, if not actually, bound to resolve the remaining Ngadju claim area in the terms agreed. 32 Having regard to the joint submission, with which I respectfully agree, and to the evidence before me, I consider that it is in the interests of justice and consistent with the overarching purpose set out in s 37M of the Federal Court of Australia Act 1976 (Cth) that an order be made under s 84D(4).

Why it is appropriate for the Court to make the orders sought 36 The Court is asked to make orders under s 87 of the Act in accordance with the agreed terms of the parties. 37 In support of this application, the following documents have been filed: (a) a Minute of Consent Orders which have been signed by each of the parties to the proceeding (the Orders); (b) a Minute of Consent Determination of Native Title (the Minute); and (c) affidavits by Mr Rumler and Mr Lanagan as described above. 38 Section 87 of the Act relevantly provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where: (a) the period specified in the notice given under s 66 of the Act has ended (s 87(1)); (b) there is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); (c) the terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)); (d) the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and (e) the Court considers that it would be appropriate to make the order sought (ss 87(1A) and (2)). 39 In addition, the Court must have regard to the following matters: (a) whether all parties likely to be affected by an order have had independent and competent legal representation; (b) whether the rights and interests that are to be declared in the determination are recognisable by the law of Australia or the state in which the land is situated; and (c) whether all the requirements of the Act have been complied with. 40 The focus of the Court in considering whether the orders sought are appropriate under ss 87(1A) and (2) is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36] and [37] that: The Act [Native Title Act] is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 41 To similar effect, Mansfield J made the following observations concerning the Court's power under s 87 in Brown v South Australia [2010] FCA 875; 189 FCR 40 at [24]: The power of the Court under ss 86G and 87, including subs 87(4)-(7) added by the 2009 Amending Act, is extensive. Section 87 now contemplates that, in an application under s 61 of the NT Act for determination of native title, the Court may make such orders as it considers appropriate even if it does not proceed to make a determination of native title. Such orders as the parties agree may include orders which do not relate directly to the determination of native title rights and interests. They may be confined to orders which do not directly relate to the determination of native title rights and interests. No party argued that, if the parties are agreed, they could not include a sustainable benefits term in the terms of the consent determination of native title rights and interests as a supplementary term pursuant to s 87 of the Act. Indeed, it is difficult to see that the parties to an application under s 61 could not agree upon any of the matters encompassed within the coverage of an ILUA: see ss 24BB, 24CB and 24DB. Nor is there any apparent reason why the range of matters which may be the subject of an agreement incorporated into Court orders under s 87 is confined to those matters, although they are widely expressed. The only step the Court must take to include the terms of an agreement is to be satisfied that it is appropriate to do so: s 87(1A). 42 Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it can consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally, which essentially involves the State satisfying itself that there is a credible basis for the application: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J and Yaegl People #1 v Attorney-General of New South Wales [2015] FCA 647 at [9] per Jagot J.

(2002) 117 FCR 6

(2001) 115 FCR 109

[2010] FCA 875

[2014] FCA 516

[2014] FCA 700

[2015] FCA 647

[2010] FCA 643

[2007] FCA 588

[2012] FCA 1455

[2014] FCA 1247

[2001] FCA 1229

[2016] FCAFC 47

[2002] FCA 660

[2006] FCA 1848